_____________ No. 95-3376EM

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Austin Hillman Marks, * * Appellant. *

_____________ Submitted: May 15, 1996 Filed: June 7, 1996

_____________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

_____________ FAGG, Circuit Judge.
Having pleaded guilty to traveling in interstate commerce in a
mu rder-for-hire scheme, Austin Hillman Marks challenges the distric t court's compliance with Rule 11 of the Federal Rules of Criminal Procedure

. Mar ks also claims for the first time on appeal that his trial counse l failed to provide effective assistance. We affirm.
Marks claims the district court did not adequately question him about the medications he wa s taking to ensure that he was mentally competent to enter a knowing and i ntelligent guilty plea. See Fed. R. Crim. P. 11(d). Marks's contention is foreclosed by our opinion in United States v. Dalman , 994 F.2d 537, 538-39 (8th Cir. 1993). After lea rning Marks had taken some medications before appearing in court to change his plea on the fourth day of a jur y trial, the district court clarified that the medication s consis ted of an antidepressant, pain reducers, and relief for stomac h ulcers. The district court then inquired whether the medications ha d affected Marks's ability to understand the plea proceeding, the

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plea agreement, and the district court's questions and explanations. Mark s assured the district court they had not. The di strict court asked Marks's trial counsel if she had any doubt about her client's ability to enter a knowing and intelligent plea, and counsel respon ded that she did not. The record shows Marks's performance during the plea proceeding was entirely consi stent with his assurance that he was in control of his faculties

. Indeed, Marks neither argued in the district court nor on appeal that he was under the influence of his medications, that the medications were mind altering, or that the medications affected his ability to make a knowing and intelligent plea. Also, the district court had observed Marks' s behavior during three days of trial, including his lengthy testimony as a witness on his own behalf. Contrary to Marks's complaint that the distric t court did not probe d eep enough, we conclude the district court's inquiry was sufficient for the purposes of Rule 11. Id.

Marks also claims the district court failed to satisfy th e requirements of Rule 11(c)(1). According to Marks, the district cour t misled him about the sentence he could receive. We disagree. The distric t court specifically informed Marks that the maximum statutory penalty for Marks's crime was tenyears. In explaining that Marks's case was covered by the sentencing guidelines, the district court made clear that whether Marks wou ld receive a lesser sentence than ten years would not be know n until "a presentence report [was] prepared and [ the judge] had a chance to
rev iew the guidelines." In accepting Marks's guilty plea, the distric t court was not obligat ed to inform Marks of the applicable guideline range or the actual sentence he would receive. United States v. Burney , 75 F.3d 442 , 445 (8th Cir. 1996). Again, we are satisfied the district cour t discharged its Rule 11 burden.
Finally, Marks claims his trial counsel was ineffective during th e plea proceeding. Ord inarily, a claim of ineffective assistance cannot be rai sed for the first time on appeal because the claim requires th e development of facts outside the original record. United States v. Martin , 62 F.3d 1009, 1012 (8th Cir. 1995), cert.

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denied , 116 S. Ct. 1556 (1996). Marks's case is an exception to this rule , however, because his arguments are governed by the record before us. Thus , we will consider Marks's claim under the two-part test announced i n Strickland v. Washing ton , 466 U.S. 668 (1984). See Hill v. Lockhart , 474 U.S. 52, 58-59 (1985).

Marks first contends his trial counsel was ineffective because sh e failed to insist that the district court make an adequate Rule 11 inquiry into the potential effect of Marks's medications on his ability t o underst and the plea proceeding. We have concluded, however, that th e district court's questioning was sufficient for the purposes of Rule 11. That being so, counse l's failure to demand compliance with Rule 11 cannot be ineffective assistance. See Thomas v. United States , 951 F.2d 902, 904 (8th Cir. 1991) (per curiam).

Marks also contends he received inef fective assistance because trial counsel failed to tell Marks the ten-year maximum sentence was the onl y possible sentence in Marks's case, and if he had known this, Marks asserts he woul d not have pleaded guilty. If trial counsel had told Marks wha t Mark s claims he should have been told, counsel would have misled he r client. As shown by the sentencing transcript, if Marks's objections to the pr esentence report had been sustained, the reduced guidelines rang e sought by Marks would have permitted a sentence of less than ten years

. Additionally, the Government in exchange for Mar ks's guilty plea dismissed another charge that could have increased Marks's guidelines sentence above the statutory maximum for the charge to which he pleaded guilty. In short , the record goes against the grain of Marks's claim that "there was n o conceivable reason for [him] to plead guilty." Because Marks has not show n "there is a reasonable probability that, but for counsel's errors, [Marks] would not have pleade d guilty and would have insisted on going to trial," Hill , 474 U.S. at 59, we reject Marks's ineffective assistance of counsel claim.

We affirm the district court

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Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.